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ABSENT A STIPULATION BY THE PARTIES, FAMILY COURT SHOULD NOT HAVE WITHDRAWN THE FAMILY OFFENSE PETITION (SECOND DEPT). ​

The Second Department, reversing Family Court, determined the family offense petition should not have been withdrawn by the judge because the parties did not stipulate to the withdrawal:

Where, as here, the matter has been submitted to the court, “the court may not order an action discontinued except upon the stipulation of all parties appearing in the action” (CPLR 3217[b]). In this case, there was no stipulation from the parties. Thus, the court erred in directing that the petition was withdrawn … . Matter of Johnson v Lomax, 2023 NY Slip Op 01675, Second Dept 3-29-23

Practice Point: A judge cannot withdraw a family offense petition which has been submitted to the court without a stipulation by the parties.

 

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THE ARTICLE 78 PETITION SOUGHT RELIEF NOT AVAILABLE IN SUCH A PROCEEDING (REMOVAL OF A TERRACE CONSTRUCTED ABOVE PETITIONER’S RESIDENCE); THE APPELLATE COURT CONVERTED THE PETITION TO A COMPLAINT PURSUANT TO CPLR 103 (SECOND DEPT).

The Second Department determined the Article 78 petition seeking the removal of a terrace constructed above petitioner’s property sought relief not available pursuant to Article 78 but converted the petition to a complaint pursuant to CPLR 103[c]:

RPAPL 871(1) authorizes the owner of any legal estate in land to maintain an action for an injunction directing the removal of a structure encroaching on such land. “Even where the facts which would justify the grant of [such] an extraordinary remedy are established, the court must still decide whether, in the exercise of a sound discretion, it should grant the remedy, and if granted, the terms and conditions which should be annexed to it” … . Consequently, that branch of the petition which was to compel the respondents to remove the terrace did not seek the performance of a purely ministerial act which can be obtained in a CPLR article 78 proceeding … .

Pursuant to CPLR 103(c), however, a proceeding should not be dismissed “solely because it is not brought in the proper form,” and this Court has the power to convert a proceeding into the proper form … . Under the circumstances, we convert so much of the proceeding as sought to compel the respondents to remove the terrace into an action, deem that branch of the petition which was to compel the respondents to remove the terrace to be the complaint, and remit the matter to the Supreme Court, Queens County, for further proceedings on the complaint. Matter of Dicker v Glen Oaks Vil. Owners, Inc., 2023 NY Slip Op 01673, Second Dept 3-29-23

Practice Point: An Article 78 proceeding is not appropriate for relief beyond a ministerial act, here the removal of a terrace constructed above petitioner’s residence. Here the appellate court converted the petition to a complaint seeking that relief pursuant to CPLR 103.

 

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FAMILY COURT DID NOT ARTICULATE ITS REASONS FOR DETERMINING CHILD SUPPORT BASED ON PARENTAL INCOME IN EXCESS OF THE STATUTORY CAP; THE ORIGINAL SUPPORT LEVEL BASED ON THE STATUTORY CAP REINSTATED (SECOND DEPT).

The Second Department, reversing Supreme Court, determined father’s objections to the level of mother’s child support obligation should not have been granted. Family Court had more than doubled the support obligations based on the couple’s income level, which was above the statutory cap. But Family Court did not sufficiently articulate the reasoning underlying the discretionary increase:

The Child Support Standards Act “‘sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling'” … . “Where . . . the combined parental income exceeds the statutory cap, in fixing the basic child support obligation on income over the cap, the court has the discretion to apply the factors set forth in Family Court Act § 413(1)(f), or to apply the statutory percentages, or to apply both” … . “However, the Family Court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap” … . “This articulation should reflect ‘a careful consideration of the stated basis for its exercise of discretion, the parties’ circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage'” … .

Here, the Family Court did not set forth a sufficient basis for its determination to calculate child support based on combined parental income exceeding the statutory cap. Further, the record shows that based on certain factors, including the parties’ disparity in income and the child’s standard of living, the child support obligation should be calculated based only on combined parental income up to the statutory cap … . Matter of Butta v Realbuto, 2023 NY Slip Op 01671, Second Dept 3-29-23

Practice Point: The court must articulate its reasons for determining child support based upon parental income exceeding the statutory cap. Here the court’s failure to do so resulted in reinstating the child support level which was based on the statutory cap.

 

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THE JUDGE SHOULD NOT HAVE DECIDED MOTHER’S CUSTODY PETITION WITHOUT A BEST INTERESTS HEARING (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a hearing was required in this custody proceeding:

“Custody determinations . . . require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child” … . Accordingly, “custody determinations should ‘[g]enerally’ be made ‘only after a full and plenary hearing and inquiry'” … . “This general rule furthers the substantial interest, shared by the State, the children, and the parents, in ensuring that custody proceedings generate a just and enduring result that, above all else, serves the best interest of a child” … . “[W]here . . . facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a custody hearing is required” … .

Here, the Supreme Court erred in making a final custody determination without a hearing and without inquiring into the best interests of the parties’ child … . Matter of Bendter v Elikwu, 2023 NY Slip Op 01670, Second Dept 3-29-23

Practice Point: Factual issues raised in a custody proceeding should not be decided without a hearing.

 

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IN AN INQUEST ON DAMAGES AFTER DEFENDANT DEFAULTED, THE JUDGE SHOULD NOT HAVE CONSIDERED LIABILITY ISSUES (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the judge should not have considered issues of liability in the inquest on damages after defendant’s default:

After conducting the inquest, the court found … that the plaintiff had failed to proffer credible evidence that the accident occurred or that she had sustained an injury that was caused by the defendants, and directed the dismissal of the complaint. …

By defaulting, the defendants admitted “all traversable allegations in the complaint, including the basic allegation of liability” … . As such, the sole issue to be determined at the inquest was the extent of the damages sustained by the plaintiff, and the Supreme Court should not have considered issues of liability … . Youngja Lee v Hong Kong Supermarket, 2023 NY Slip Op 01668, Second Dept 3-29-23

Practice Point: A judge should not consider issues of liability in an inquest on damages after the defendant’s default.

 

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PRECLUSION OF EVIDENCE AS A DISCOVERY SANCTION WAS NOT WARRANTED; THERE WAS NO EVIDENCE OF WILLFUL OR CONTUMACIOUS CONDUCT AND THE SANCTIONED PARTY WAS NOT GIVEN AN OPPORTUNITY TO EXPLAIN THE FAILURE TO COMPLY WITH DISCOVERY ORDERS (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the discover sanctions imposed by the judge on plaintiff were not warranted:

… Supreme Court improvidently exercised its discretion by imposing the drastic sanction of preclusion upon the plaintiff without affording the plaintiff adequate notice and an opportunity to be heard, including on facts relevant to whether the plaintiff’s noncompliance was willful and contumacious. The defendant did not move for sanctions pursuant to CPLR 3126 due to the plaintiff’s failure to comply with the interim order, nor did the court make its own motion or include language in the interim order warning that noncompliance would result in sanctions. The court also made its determination without oral argument, such that it is unclear what opportunity the plaintiff had to explain the circumstances of its noncompliance. …

… [E]ven if the plaintiff had been provided with adequate due process, the Supreme Court still would have improvidently exercised its discretion by, inter alia, precluding the plaintiff from serving further demands and from introducing certain documents. The record contains no showing of “a clear pattern of willfulness and contumacious conduct necessary to justify [such] sanctions” … . There is no indication that the plaintiff “repeated[ly] fail[ed] to comply with court-ordered discovery” or “fail[ed] to comply with court-ordered discovery over an extended period of time” … . Instead, this case involves a “single incident of noncompliance” with a court order, which was insufficient to warrant a sanction as drastic as preclusion … , especially given the policy of resolving cases on their merits and the fact that discovery was still ongoing at the time the court made its determination. Korsinsky & Klein, LLP v FHS Consultants, LLC, 2023 NY Slip Op 01667, Second Dept 3-29-23

Practice Point; Before precluding evidence as a discovery sanction, there must be a finding of willful and contumacious conduct and the the sanctioned party must be given a chance to explain the failure to comply with discovery orders.

 

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WHERE A STATUTE, HERE CIVIL RIGHTS LAW 40-B, PRESCRIBES A MONETARY REMEDY, AN INJUNCTION IS NOT AVAILABLE (FIRST DEPT).

​The First Department, reversing Supreme Court, determined plaintiffs’ request for a preliminary injunction in this Civil Rights Law 40-b action should not have been granted because the remedy is statutory. Civil Rights Law 40-b prohibits an entertainment venue from denying entry to a person who has a ticket:

… [I]t was improper for the motion court to issue a preliminary injunction. As Civil Rights Law § 41 prescribes a monetary remedy for violations of Civil Rights Law § 40-b, plaintiffs are limited to that remedy (see Woollcott v Shubert , 169 App Div 194, 197 [1st Dept 1915] [“The general rule is that where a statute creates a right and prescribes a remedy for its violation that remedy is exclusive and neither an action for damages nor for an injunction can be maintained”] …). Even if injunctive relief were available, the existence of a statutory damages remedy would undermine plaintiffs’ claims of irreparable harm … . Hutcher v Madison Sq. Garden Entertainment Corp., 2023 NY Slip Op 01646, First Dept 3-28-23

Practice Point: Here the statute, Civil Rights Law 40-b, prescribed a monetary remedy for a violation. Therefore Supreme Court should not have granted plaintiffs’ request for a preliminary injunction.

 

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THE RAPE FIRST AND CRIMINAL SEXUAL ACT FIRST CONVICTIONS WERE VACATED AS INCLUSORY CONCURRENT COUNTS OF TWO PREDATORY SEXUAL ASSAULT COUNTS (FIRST DEPT).

The First Department vacated the convictions of rape first and criminal sexual act first as inclusory concurrent counts of two of the predatory sexual assault counts. People v Heyward, 2023 NY Slip Op 01651, First Dept 3-28-23

Practice Point: Here the rape first and criminal sexual act first convictions were vacated as inclusory concurrent counts of two predatory sexual assault counts.

 

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DEFENDANT’S OFFER TO PROVIDE FALSE TESTIMONY IN A SEPARATE ACTION IS NOT PROTECTED BY THE LITIGATION PRIVILEGE IN THIS RELATED ACTION ALLEGING DEFENDANT’S BREACHED A CONFIDENTIALITY AND NONDISPARAGEMENT AGREEMENT (FIRST DEPT). ​

The First Department, reversing Supreme Court, in a full-fledged opinion by Justice Rodriguez, determined defendant’s motion to dismiss the complaint for failure to state a cause of action should not have been granted. The complaint alleged breach of a confidentiality and nondisparagement agreement (TRB Agreement) which stemmed from a trademark infringement and unfair competition action brought by nonparty Reebok. “… [D]efendant and his attorneys allegedly caused anonymous phone calls to be made to Reebok’s counsel stating that defendant possessed information that TRB [plaintiff] ‘intended to copy Reebok from the get-go.’ Defendant’s attorneys also notified Reebok’s counsel that defendant would comply with a subpoena issued to him. Reebok listed defendant as a witness before trial and detailed defendant’s expected testimony, including allegedly false testimony that TRB intended to create a ‘knockoff’ brand infringing on Reebok’s marks. The description of expected testimony also made clear that defendant had breached the TRB Agreement by disclosing information concerning TRB’s operations and information concerning the Reebok litigation:”

The main issue presented on this appeal is whether plaintiffs’ complaint alleges conduct upon which invocation of the absolute litigation privilege would constitute abuse of the privilege such that its protections should not apply or be withdrawn.

Examination of the applicable law, particularly with respect to plaintiffs’ proposed exception to the privilege, demonstrates that the course of conduct alleged implicates a limited exception analogous to that applied in Posner v Lewis (18 NY3d 566 [2012]) to another absolute privilege. Accordingly, where a party engages in an extortion attempt by threatening to provide false testimony in a separate action if their demands are not accepted, and, following rejection, affirmatively reaches out to the extortion target’s adversaries in the separate litigation, indeed offering to provide false testimony in that action, the absolute litigation privilege will not bar the action. TRB Acquisitions LLC v Yedid, 2023 NY Slip Op 01654, First Dept 3-28-23

Practice Point: Here defendant’s offer to provide false testimony in a separate proceeding was not protected by the litigation privilege in this action alleging defendant’s breach of a confidentiality and nondisparagement agreement.

 

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​ THE JUDGE SHOULD NOT HAVE DETERMINED THE TRIAL WITNESS’S IDENTIFICATION OF DEFENDANT WAS CONFIRMATORY FOR THE FIRST TIME AT TRIAL; A MIDTRIAL RODRIGUEZ HEARING SHOULD HAVE BEEN HELD; MATTER REMITTED (FOURTH DEPT).

The Fourth Department, remitting the matter for a hearing to determine whether a witness’s identification of defendant was confirmatory, noted that the judge should not have found the identification confirmatory for the first time based on the witness’s trial testimony. A Rodriguez hearing should have been when the issue came up at trial:

The witness in question disclosed on cross-examination at trial that he had identified defendant as the assailant in a photograph shown to him by the police. The People’s CPL 710.30 notice did not reference this identification. Defense counsel thus asked the court to strike the witness’s testimony on the ground of lack of notice, but the court, relying on the witness’s trial testimony, ruled that the People were not required to give notice because the identification was confirmatory. That was error. As the Court of Appeals has made clear, “prior familiarity should not be resolved at trial in the first instance” (Rodriguez, 79 NY2d at 452 …), and, in any event, the witness’s trial testimony was not sufficient to establish as a matter of law that the identification was confirmatory.

Although the witness testified that he knew defendant because he had seen him “a couple of times” at the barber shop, and that the two had each other’s phone numbers, he also testified that he did not know defendant well, that he knew him only by a common nickname, and that they never spoke again after the assault. A midtrial Rodriguez hearing would have allowed defense counsel to flesh out the extent of the relationship between the two men, thereby allowing the court to make a more informed determination as to whether the pretrial identification of defendant was confirmatory as a matter of law. People v Alcaraz-ubiles, 2023 NY Slip Op 01637, Fourth Dept 3-24-23

Practice Point: If the defense is not given notice of a witness’s identification of the defendant, the witness cannot testify about the identification unless it was “confirmatory,” I.e., based on knowing the defendant. Here the judge should not have found the identification confirmatory based on the witness’s trial testimony. A midtrial Rodriguez hearing should have been held. The matter was remitted.

 

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